COPYRIGHT LAW 2002 Columbus School of Law The Catholic University of America Prof. Fischer Class 25 (APRIL 17, 2002)

Fair Use What is fair use? Why does copyright law have a doctrine of fair use?

Codification of Fair Use Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision?

Codification of Fair Use Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision? At 17 U.S.C. section 107 According to this section, how should a court determine whether a use made of a copyrighted work is a fair use that would exempt the use from liability for infringement?

Fair Use Factors (1) purpose and character of the use (commercial or non-commercial eg. educational?) (2) nature of copyrighted work (fact or fiction?) (3) amount and substantiality of amount used (4) effect on the market for the copyrighted work Does it make any difference if a work is unpublished?

Fair Use Factors (1) purpose and character of the use (commercial or non-commercial eg. educational?) (2) nature of copyrighted work (fact or fiction?) (3) amount and substantiality of amount used (4) effect on the market for the copyrighted work Does it make any difference if a work is unpublished? NO

Fair Use is VERY fact-specific Section 107 restates judicial doctrine of fair use Fair use is essentially an “equitable rule of reason” so there is no “generally acceptable definition” Each case must be decided on its own facts There are no bright-line rules, as Justice Souter has stated. Of course, this makes it hard for lawyers to advise clients on when a particular use of a copyrighted work will be a fair use.

Fair Use and Parody: The Acuff- Rose case We’ve discussed this case before and listened to the two songs at issue. What’s a parody? How does Justice Souter apply the 4 fair use factors to analyze whether the rap song’s use of the Roy Orbison song is a fair use? Does it make any difference that the rap song is commercial? Does it matter if the parody is in bad taste, or not funny? Do you agree with Justice Souter’s analysis? Why or why not?

The Cat in the Hat case Why did the court rule against the parody defense for the book on the O.J. Simpson Trial?

Annie Leibovitz Naked Gun Case

Why did Leibovitz sue over the “Naked Gun” ads. Did fair use apply? Why or why not? Is this consistent with the Dr. Seuss case?

Gone With the Wind case Suntrust Bank v.Houghton Mifflin (11 th Cir. 2001) According to the 11 th Circuit, should the The Wind Done Gone be treated as a fair use parody even though it was not comic? Why or why not? Do you agree?

Seinfeld case: Castle Rock v. Carol Pub. (2d Cir. 1998) Was the preparation and sale of Seinfeld Aptitude Test a fair use, according to the Second Circuit? Why or why not?

Fair Use Generally Are all these cases just hopelessly inconsistent? How does one advise a client on the issue of fair use? How, if at all, should the doctrine be changed?